2019 FC, 2019 FC 1297

Date: 20191030 Docket: T-1994-16 Citation: 2019 FC 1297 Ottawa, Ontario, October 30, 2019 PRESENT: The Honourable Mr.

Justice Favel BETWEEN: MAKIVIK CORPORATION Applicant and THE HONOURABLE CATHERINE MCKENNA, IN HER CAPACITY AS MINISTER OF ENVIRONMENT AND CLIMATE CHANGE AND THE ATTORNEY GENERAL OF CANADA, IN HER CAPACITY AS THE LEGAL MEMBER OF THE QUEEN'S PRIVY COUNCIL CHARGED WITH THE REGULATION AND CONDUCT OF ALL LITIGATION AGAINST THE CROWN AND NUNAVIK MARINE REGION WILDLIFE BOARD AND EEYOU MARINE REGION WILDLIFE BOARD AND THE GRAND COUNCIL OF THE CREES Respondents and NUNAVUT TUNNGAVIK INCORPORATED and ATTORNEY GENERAL OF NUNAVUT Interveners JUDGMENT AND REASONS I.

Introduction [ 1 ] The Applicant, Makivik Corporation [Makivik], is seeking judicial review under

section 18.1 of the Federal Courts Act , RSC, 1985, c F-7 , against the Minister of Environment and Climate Change Canada’s [Minister] decision dated October 19, 2016. This decision varied the Nunavik Marine Region Wildlife Board’s [NMRWB] and the Eeyou Marine Region Wildlife Board’s [EMRWB] final decision regarding the Total Allowable Take [TAT] and non-quota limitations for the harvesting of Southern Hudson Bay [SHB] polar bears within the Nunavik Marine Region [NMR], pursuant to

section 5.5.12 of the Nunavik Inuit Land Claims Agreement [NILCA] and

section 15.3.7 of the Eeyou Marine Region Land Claims Agreement Act [EMRLCA]. [ 2 ] As recognized by all the parties, NILCA is a constitutionally protected modern treaty which fosters reconciliation. In First Nation of Nacho Nyak Dun v Yukon , 2017 SCC 58 [ Nacho Nyak Dun ], Justice Karakatsanis, writing for the Supreme Court of Canada, stated at para 1: As expressions of partnership between nations, modern treaties play a critical role in fostering reconciliation. Negotiating modern treaties, and living by the mutual rights and responsibilities they set out, has the potential to forge a renewed relationship between the Crown and Indigenous peoples. [ 3 ] This application primarily concerns

Article 5, which establishes a co-management regime that seeks to integrate Inuit knowledge and approaches to wildlife management with Western scientific knowledge. The parties have all made it clear that the conservation and state of polar bears is fundamentally important to the Inuit, other indigenous people, and society at large. NILCA provides a mechanism for considering various interests and factors toward managing this precious resource. There is no doubt that the matter is complex— Makivik’s own procedural approach and characterization of the issues reflect the complexity of the NILCA process.

In their submissions and in the included affidavits, the parties have all noted the difficult nature of this matter, which involves an animal that roams across territorial and provincial boundaries, and which involves two different Inuit communities from different jurisdictions of Canada and other Indigenous governments. All of the above-listed parties have an interest in the resource. [ 4 ]

Article 5 of NILCA also contains the decision-making process that determines how conservation decisions are made. In theory, and based on a review of the extensive provisions of

Article 5, the decision-making process is straightforward. However, in reality and since this was the inaugural process for such a decision under NILCA, understandable delays occurred and issues arose between the parties, leading to this proceeding. [ 5 ] Makivik submits that this case really is not about polar bears, nor is it about the duty to consult. It submits that this case is about the implementation of Inuit treaty rights under NILCA. Makivik also claims that the Minister’s October 19, 2016 decision was neither correct nor reasonable. It does not seek to quash the Minister’s decision.

Rather, Makivik seeks several declarations concerning the Minister’s decision. [ 6 ] For the following reasons, the application for judicial review is dismissed.

II. Background [ 7 ] As this matter involves many parties and a complicated decision-making process, I find it appropriate to provide a complete account of the background. A. The history of polar bear harvesting [ 8 ] For the Inuit, the polar bear, or " “Nanuq” " in Inuktitut, is a powerful and meaningful being. Polar bears are prominent in their culture, as they are highly valued and appreciated for their meat and fur.

The Inuit have hunted polar bears as a source of sustenance for thousands of years, and many Inuit communities continue to rely on polar bears for both social and economic purposes. [ 9 ] There are nineteen different subpopulations of polar bears that have been divided according to specific geographical zones. Most of these subpopulations are found within the Territory of Nunavut.

The present application addresses only one out of nineteen of these subpopulations: SHB polar bears within the NMR. [ 10 ] Recognizing that the Inuit hunt SHB polar bears as a form of necessity, the Inuit of Nunavut have long participated in a management scheme that establishes a legal framework, through quota systems, for the harvesting of polar bears. For instance, the Nunavut Land Claims Agreement , SC 1993, c 29 provides rights and responsibilities to Hunters and Trappers Organizations [HTO] for the harvesting of polar bears.

Each regional wildlife organization establishes a total allowable harvest for species, such as polar bears, and the HTOs lead their communities by managing and implementing harvesting rules amongst their members. The Nunavik Inuit of Quebec [Nunavik Inuit] have had a similar quota system which has set out the minimum level of polar bear harvest since the inauguration of the James Bay and Northern Quebec Agreement of 1975, as discussed in Mr. Alaku’s affidavit. [ 11 ] From the 1970s until 2011, the quotas had remained the same for Nunavik Inuit.

However, in 2010-2011, there was a significant increase in polar bear harvesting. This caused many organizations, including Makivik, to hold a meeting in June 2011 to remedy this upswing in harvesting through a voluntary agreement. Consequently, the 2011 voluntary agreement came into effect on September 21, 2011. It contained a fixed quota for each of the communities involved, amounting to a total of 60 polar bears per year that could be harvested as follows: 26 polar bears for Nunavik Inuit, 25 for Nunavut Inuit, 4 for Cree of Eeyou Istchee and 5 for Cree Nations of Ontario. [ 12 ] Mr.

Alaku states that prior to the Minister’s decision " “there has never been a quota or upper limit on the number of polar bears that Nunavik Inuit are permitted to take” " . As Makivik’s counsel stated, " “Up until the decision of the Minister at issue in these proceedings, there had never been any legally enforceable quota on Nunavik Inuit harvesting of polar bears” " . B. The Applicant [ 13 ] The Applicant, Makivik, is the legal representative of Nunavik Inuit. Makivik is a non-profit organization, established in 1978 under the James Bay and Northern Quebec Agreement of 1975 and NILCA.

Its primary role is to administer the lands of the Inuit, as well as to protect the rights, interests and financial compensation provided by the aforementioned agreements. Makivik has played a significant role in the inauguration and expansion of Nunavik. Makivik is also involved politically, culturally, and economically in various projects dealing with modern aboriginal treaties, governments, and other Inuit. C. The Respondents

(1) The NMRWB and the EMRWB [ 14 ] The Respondents, NMRWB and EMRWB [the Boards], are the main instruments of wildlife management in the NMR (Section 5.2.3 of NILCA) and the Eeyou Marine Region [EMR]. Pursuant to

section 5.2.1 of NILCA, the NMRWB has a composition of seven members to be appointed as follows: Makivik appoints three members, the federal Minister responsible for fish and marine mammals and the federal Minister responsible for the Canadian Wildlife Service each appoint one member, and the Government of Nunavut Minister responsible for wildlife appoints one member. Together, the parties also elect one chairperson. Under

section 5.2.2 of NILCA, Makivik and the respective Governments (Canada and Nunavut) also have the right to have technical advisors to attend all meetings as non-voting observers. [ 15 ] Created under NILCA, the NMRWB studies both Inuit traditional knowledge [ITK] and Western science throughout its decision- making process. The EMRWB was formed under EMRLCA. The EMRWB did not present written submissions as it chose not to appear in the present matter. [ 16 ] Makivik recognizes the tension between indigenous knowledge and management of resources and government management of resources through reliance on science.

Makivik submits that this tension is bridged in NILCA through the creation of the NMRWB and by the principles of conservation that guide it.

(2) The Grand Council of the Crees (Eeyou Istchee) [ 17 ] The Respondent, the Grand Council of the Crees [Cree Respondent], is a non-profit organization that aims to represent and defend the interests of the Eeyou Itschee residing in eastern James Bay and southeastern Hudson Bay.

(3) The Attorney General of Canada

[18] The Respondent, the Attorney General of Canada [AG of Canada], is the legal representative of the Minister. Pursuant to theprocess established in sections 5.5.6 to 5.5.13 of NILCA, the Minister can accept, reject or vary the Boards’ final decisions and providereasons for doing so. D. The Interveners

(1) Nunavut Tunngavik Incorporated [19] The Intervener, Nunavut Tunngavik Incorporated [NTI], is an organization that represents the Inuit of Nunavut. NTI continues toplay an active role in ensuring that all parties involved, including the Government of Canada and the Government of Nunavut, implementthe Nunavut Land Claims Agreement.

(2) The Attorney General of Nunavut [20] The Intervener, the Attorney General of Nunavut [AG of Nunavut], represents the Minister of Environment of Nunavut who canaccept, reject or vary the Boards’ final decision in accordance with sections 5.5.14 to 5.5.21 of NILCA. [21] The AG of Nunavut presented arguments asking this Court to decline the granting of declaratory relief sought. The Intervener relieson Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR 342 [Borowski] in order to submit that the case ismoot under the initial phase of a two-step analysis for the doctrine of mootness (no live controversy).

In the event that this Courtconcludes that the case is not moot, the AG of Nunavut argues that the Court reserves the right to exercise its discretion upon judicialreview and should, therefore, decide not to grant declaratory relief. The Intervener AG of Nunavut also submits that it is highly likelythat future decisions made by the NMRWB and the EMRWB regarding the Foxe Basin and Davis Strait polar bear within the NMR, orother species, become the subject of judicial review. The Court must therefore act accordingly in order to allow the NMRWB to have theopportunity to interpret NILCA in the future.

By declining to grant relief, it is submitted that the parties involved would be more open"“to govern together and work out their differences”" and "“to work out their understanding of a process – quite literally, to reconcile –without the court’s management of that process”": Nacho Nyak Dun at paras 33, 60. [22] The Intervener AG of Nunavut contends that the case is moot as "“there is no longer a concrete legal dispute”" regarding theMinister’s decision.

The AG of Nunavut notes that Makivik is no longer asking this Court to quash the Minister’s decision becauseMakivik re-amended its application for judicial review by replacing the relief it sought with declaratory relief. [23] The Intervener AG of Nunavut also notes that Makivik submitted a similar judicial review before the Nunavut Court of Justice. Inthe event that this Court renders its decision on the present matter, the Intervener argues that the Federal Court decision is not binding onthe Nunavut Superior Court of Justice. E. NILCA and EMRLCA [24] NILCA came into force on July 10, 2008.

On December 1, 2006, Nunavik Inuit and the Government of Canada became signatoriesof the agreement. NILCA establishes principles on Nunavik Inuit’s harvesting rights in the NMR, as well as the Minister’s right tointervene in certain circumstances. With NILCA, Nunavik Inuit agree to exchange their aboriginal rights and title in the areas in questionfor treaty rights.

NILCA also includes principles of conservation, as well as the implementation of a TAT and non-quota limitations forthe NMR in recognition of Cree and Inuit rights in the overlap area. [25] The NMR comprises vast areas of lands and waters within the boundary found in

Schedule 3-2 of NILCA. Pursuant to

section 3.2of NILCA, the NMR includes areas of equal use and occupancy with the Nunavut Inuit, and the overlap area is equally used andoccupied by the Cree of Eeyou Itschee. The coordination of the overlap area is addressed in

Article 28 of NILCA and in the Cree/InuitOffshore Overlap Agreement. [26] EMRLCA was signed by the Cree of Eeyou Istchee and the Government of Canada on July 7, 2010 and came into effect onFebruary 15, 2012. This modern treaty covers the EMR area adjacent to Quebec. F. Convention on International Trade in Endangered Species of Wild Flora andFauna [27] Ratified in 1975, the Convention on International Trade in Endangered Species of Wild Flora and Fauna [CITES] is aninternational treaty which protects the trade of certain species of wild animals and plants from over-exploitation.

In order to do so, CITESemphasizes the importance of international cooperation. CITES contains Appendices that regulate the international trade in specimens ofcertain species enlisted in an Appendix. Polar bears are currently part of Appendix II of CITES. This means that, "“[t]he export of anyspecimen of a [polar bear] shall require the prior grant and presentation of an export permit”". G.

The 2014 Voluntary Agreement [28] In September of 2014, interested parties, including NTI and Makivik, held a meeting about polar bear management where, afterdiscussion, the parties entered into a voluntary agreement for the harvesting of SHB polar bears [2014 Voluntary Agreement]. Theparties to the 2014 Voluntary Agreement were: ∙ Nunavut Department of Environment

∙ Nunavut Tunngavik Incorporated ∙ Makivik Corporation ∙ Ontario Ministry of Natural Resources and Forestry ∙ Cree Trappers Association (Quebec) ∙ Fort Severn Cree Nation ∙ Cree Nation Government (Quebec) ∙ Environment Canada ∙ Sanikiluaq Hunters and Trappers Organization ∙ Inukjuak Nunavimmi Umajulirijiit Katujjiqatigiinninga ∙ Kuujjuarapik Nunavimmi Umajulirijiit Katujjiqatigiinninga ∙ Umiujaq Nunavimmi Umajulirijiit Katujjiqatigiinninga ∙ Qikiqtaaluk Wildlife Board [ 29 ] In the 2014 Voluntary Agreement, the parties established different voluntary quotas than those negotiated in 2011, with the total voluntary limits set at 45 polar bears per year for all the communities involved: Nunavik Inuit agreed to harvest 22 polar bears; Nunavut Inuit, 20; Cree of Eeyou Istchee and Cree Nations of Ontario, 1 or 2 (total of 3 for all Cree).

H. The process begins [ 30 ] In a letter dated January 10, 2012, Peter Kent, former Minister of Environment Canada, sent a formal request to the NMRWB to establish a TAT for each subpopulation of polar bear in the NMR. This request was in response to the letter of the then chair of the NMRWB who raised concerns about the 2011 voluntary agreement and the fact that the NMRWB was not engaged and that the NILCA process was not used. [ 31 ] There are three subpopulations of polar bear that are harvested by Nunavik Inuit: Davis Strait, Foxe Basin and SHB.

The NMRWB first chose to review the SHB management unit, which is harvested by Nunavik Inuit, the Nunavut Inuit of Sanikiluaq, as well as the Cree of Eeyou Istchee. [ 32 ] It took the NMRWB more time than anticipated to move forward with the process since the results of a 2011-2012 aerial survey were only completed in November of 2013 by the Ontario Ministry of Natural Resources and Forestry. Based on this survey, there was an estimate of 951 bears for the SHB subpopulation.

After further revision, the number was later amended to an estimate of 943 polar bears. [ 33 ] On December 19, 2013, the NMRWB issued a Public Hearing Notice inviting all interested parties to file written submissions and supporting documents by January 27, 2014, regarding the establishment of a TAT for the SHB polar bear within the NMR. The notice indicated that the public hearings which would take place in Inukjuak, Quebec from February 12 th to 14 th , 2014. More than a dozen parties filed written submissions prior to the public hearings and most of those same parties also made oral submissions.

These parties included governmental departments, aboriginal organizations, environmental non-governmental organizations, local Inuit hunting groups, and individual Inuit hunters. [ 34 ] At a briefing of the NMRWB and its staff after the public hearings, it was noted that additional information was needed before the NMRWB could make a decision. Specifically, it was felt that more information was required from the actual users of the resource since the public hearings were not the ideal method for obtaining this type of information.

They decided to request further information from the attendees of the public hearings and to undertake a study of relevant ITK. [ 35 ] The results of the ITK study were summarized in a seven-page chart called " “Nunavik Inuit Knowledge of Polar Bears:

Summary of Knowledge and Suggestions” " [ITK

Summary]. The ITK

Summary was forwarded to the parties that had participated in the public hearings for comment. The NMRWB engaged a third party to prepare a final report. At the time of the Minister’s decision, only the ITK

Summary was available. I. The Boards’ initial and final decisions

(1) The Boards’ initial decision [ 36 ] It should be noted that the delay the Boards’ decision-making was because this was the first such process under NILCA and, due to an oversight, the EMRWB was not initially involved. This was remedied and the Boards ultimately made their decision. [ 37 ] On July 23, 2015, the Boards sent a letter to both the Minister of Environment of Canada and the Minister of Environment of Nunavut, informing them of their decision regarding the SHB polar bear TAT and non-quota limitations within the NMR. [ 38 ] The Boards determined that the TAT for SHB polar bears in the NMRWB should be fixed at 28, per

section 5.5.3 of NILCA. According to the Boards, it was essential to have a flexible management unit to avoid overharvesting. The Boards also concluded that the

Crees of Eeyou Istchee are permitted to harvest at least one polar bear from the TAT of 28 bears. The Boards further decided that there should not be a requirement for sex-selective harvesting, as it would be contrary to

section 5.5.3 of NILCA. Finally, the Boards presented a list of non-quota limitations for a fair and strict implementation of the TAT allocation. [ 39 ] On September 22, 2015, the Minister of Environment of Nunavut rejected the Boards’ initial decision to establish a TAT of 28 polar bears, pursuant to

section 5.5.16 of NILCA and

section 15.4.3 of EMRLCA. Consequently, the Minister of Nunavut asked the Boards to reconsider their decision, this time, without exceeding a maximum sustainable harvest rate of 4.5 percent. The Boards were also asked to implement a sex-selective harvest of two males for every female bear. [ 40 ] On September 23, 2015, the Deputy Minister of Environment Canada wrote a letter to the Boards informing them that their decision was rejected pursuant to paragraph 5.5.3(

a) of NILCA and paragraph 15.2.1(

a) of EMRLCA. The letter explained that the TAT of 28 polar bears for Nunavik Inuit and the Crees of Eeyou Istchee " “is likely not sustainable and creates conservation concerns for this management unit” " . The Deputy Minister also invited the Boards to issue a final decision by taking into account the maximum sustainable harvest of 4.5 percent, as well as the non-quota limitation of a sex-selective harvest of two males per one female bear. In addition, the Deputy Minister referred to the 2014 Voluntary Agreement as a " “domestic interjurisdictional agreement” " for the first time.

(2) The Boards’ final decision [ 41 ] On December 21, 2015, the Boards issued their final decision ( " “Final Decision-Establishing a TAT and Non-Quota Limitation for SHB polar bears, within the NMR” " ). Once again, the letter was sent to both the Minister of Environment of Canada and the Minister of Environment of Nunavut. [ 42 ] The Boards confirmed their initial decision establishing a TAT of 28 polar bears for the NMR.

According to the Boards, " “[a] TAT of twenty-eight (28) reflects the low-end of estimated annual harvests by Nunavik Inuit […] and permits an allocation to the Cree of Eeyou Istchee.” " The Boards maintained their position on the importance of flexibility within the management system. The Boards did not agree with the Ministers regarding the implementation of a formal sex-selective harvest.

Instead, the Boards explained that a sex- selective harvest of two males per one female bear " “goes against Inuit traditions and values” " , " “upsets the natural balance of wildlife populations and tends to remove the fittest breeders” " . [ 43 ] The Boards also fully maintained the initial non-quota limitations in their final decision since " “neither government offered concerns about the non-quota limitations proposed initially” " . The Boards did not agree with the Deputy Minister regarding the 2014 Voluntary Agreement.

In their final decision, the Boards contend that the 2014 Voluntary Agreement " “is not a domestic interjurisdictional agreement” " as per

section 5.5.4.1 of NILCA and

section 15.2.2 of EMRLCA. The Boards further added that, in any case, the 2014 Voluntary Agreement " “is without prejudice to the decision-making processes defined in the applicable Land Claims Agreements” " . J. The process leading to the Minister’s decision [ 44 ] On February 17, 2016, the Director General of Canadian Wildlife Service wrote to the Boards that Environment and Climate Change Canada [ECCC] would have a response and an analysis of the Boards’ final decision by June 30, 2016. The Minister was unable to provide a response by June of 2016.

Instead, ECCC officials began to write the Memorandum to the Minister in July of 2016. [ 45 ] On September 21, 2016, ECCC officials sent a Memorandum to the Minister in response to the Boards’ decision. ECCC recommended that the Minister vary the Boards’ final decision, " “based on conservation and technical concerns” " . It also recommended that the Minister reduce the TAT from 28 to 23 polar bears " “for conservation reasons (sustainability of the management unit)” " .

The Memorandum was also accompanied by a detailed document, " “Analysis of the Final Decision and Rationale for Varying the Decision” " , explaining to the Minister how ECCC officials came to a TAT of 23 polar bears. K.

The Minister’s decision under review [ 46 ] In a letter dated October 19, 2016, accompanied by two documents titled respectively, " “Response to Final Decision on TAT for Southern Hudson Bay polar bear” " [Response] and " “Analysis of Decision on TAT and Non-Quota Limitations for SHB polar bears, within the NMR” " [Analysis] the Minister advised the Boards that it decided to vary the TAT and non-quota limitations for polar bears within the NMR, pursuant to paragraph 5.5.3(

a) of NILCA. After considering the Boards’ final decision, the Minister decided that there would be an annual TAT of twenty-three (23) polar bears from the SHB management unit for the NMR. The Analysis states: The TAT of 23 establishes a combined harvest of polar bears from the Southern Hudson Bay management unit of close to 4.5% which aligns with the widely accepted sustainable removal level. […] [A] maximum harvest of close to 4.5% should be established, to ensure the population remains stable and the harvest sustainable.

This is consistent with previous statements by Environment and Climate Change Canada (e.g., the Environment and Climate Change Canada submission to the Southern Hudson Bay public hearing held in Inukjuak in February 2014 and Deputy Minister Michael Martin’s letter of September 23 rd , 2015). [ 47 ] In the Response, regarding the final decision on the annual TAT for the SHB polar bear, the Minister indicated the manner in which the TAT shall be implemented within the NMR, namely that: a. all human-caused mortalities will be deducted from the TAT, including any bears killed on defense of life and property;

b. if the sum of all human-caused mortalities exceeds the TAT in a given year, the following year’s TAT will be reduced correspondingly; c. […] [ 48 ] The Minister, in the Response, accepted some of the Boards’ non-quota limitations for the harvest of polar bears in management unit, subject to other non-quota limitations, such as: 1. The TAT will be harvested annually, limited to 1 female per 2 males; 2.

All polar bears killed by humans, whether as part of the subsistence harvest or in defense of life and property, will be reported to the appropriate authority as soon as possible (whether or not these are intended for sale); 3. […] [ 49 ] The Minister’s letter also included the following wording: Once the new survey results and traditional knowledge study become available, I am open to reconsidering the total allowable take for this management unit of polar bears. L. Makivik Corporation’s Application [ 50 ] On November 18, 2016, Makivik filed the present proceedings.

Makivik does not agree with the Minister’s decision dated October 19, 2016, and had asked the Court for an order " “quashing that decision and remitting the matter to the [Minister] to render a new decision” " . [ 51 ] On April 25, 2017, Makivik filed an amended application for judicial review with the Court’s consent. Cross examinations occurred in late 2017 and early 2018. On April 6, 2018, Makivik re-amended its application for judicial review, also with the Court’s consent.

As a result of a new 2016 aerial survey, Makivik explained that the newly amended application for judicial review now sought only declaratory relief from the Court rather than a request to quash the Minister’s decision and remit the back to the Minister. Makivik also asked the Court for an order to grant costs in the present application. III. The Evidence [ 52 ] The evidence for the present application consists of a certified tribunal record as well as other material that was not in the certified tribunal record including affidavits and supporting exhibits.

As described above, the parties have cross-examined some of these affiants and the transcripts were included in the record. [ 53 ] The parties have acknowledged that the record contains much information that was not before the Minister. The AG of Nunavut devoted a significant amount of its submissions on this point and the problem that the record poses where Makivik now seeks only declaratory relief. [ 54 ] Makivik filed the affidavit evidence of: ∙ Valentina Cean , an employee of Dionne Schulze.

Her affidavit includes exhibits in the form of documents that are publicly available on the NMRWB’s website, including reports, letters, and research information. These are not contained in the other affidavits produced by Makivik. ∙ Mark O’Connor , Resource Management Coordinator at Makivik Corporation. He was previously the Director of Wildlife Management with the NMRWB. As Director, he was responsible for collecting and analyzing relevant information on wildlife species in the NMR.

He also supervised staff work on these issues and coordinated with the representatives from other regulatory agencies that also dealt with species from the NMR. He provided some clarity and explanations about the delayed results of the 2011-2012 aerial survey and the ITK study. ∙ Gregor Gilbert , Senior Resource Development Department Coordinator for Makivik. He participates in developing management plans for the resources harvested by Nunavik Inuit. He also sits on various committees that discuss certain wild species such as the Eastern Hudson Bay beluga.

Ever since he joined Makivik in 2010, he has primarily been working on polar bear management. He provided a map produced by Environment Canada to demonstrate the composition of polar bear management units within the NMR. ∙ Adamie Delisle Alaku , Executive Vice-President for the Resource Development Department for Makivik. Attached to his affidavit was a copy of the 2014 Voluntary Agreement. His affidavit mentions the correspondence between himself and the then- Minister of Environment on the importance of establishing a voluntary agreement between the parties involved.

He was cross- examined. ∙ Paulusi Novalinga , Inuk living in the town of Puvirnituq on Hudson Bay. He is president of the Anguvigaq (Nunavik Hunters, Fishermen and Trappers Association). During the NMRWB’s public hearing in 2014, he presented some of the issues that the organization had about the polar bear population. He provided history and background respecting the Inuit and their harvesting activities. [ 55 ] The Respondent AG of Canada filed the affidavit evidence of:

∙ Dr. Rachel Vallender, Acting Manager and biologist. She works for the Canadian Wildlife Service of Environment and ClimateChange Canada. Ms. Vallender has a PhD in biology from Queen’s University. She has seventeen years of experience on wildspecies, especially on migratory birds. In her affidavit, she mentions the importance of including ITK in wildlife managementdecision-making. She was cross-examined. On September 22, 2017, Makivik filed a motion record asking this Court to grant anOrder striking paragraphs 90, 91 and 92, and associated exhibits RV-28 and RV-29 from the affidavits of Ms.

Rachel Vallender.The Respondent AG of Canada filed its response within a motion record, arguing that Makivik’s request is premature. [56] The Respondent NMRWB filed the affidavit evidence of: ∙ Kaitlin Breton-Honeyman, Director of Wildlife Management at the NMRWB. She has a Bachelor’s Degree in Natural Sciencesfrom Trent University with a major in Biology. As of July of 2013, she was involved in preparing the NMRWB’s public hearingon February-12-14, 2014. She reviewed the public hearing notice that was sent out to all parties on December 19, 2013.

She wasalso part of the team in charge of compiling, reviewing and summarizing any written submissions she received from the partiesfollowing the public hearing notice. She was cross-examined. [57] The Cree Respondent filed the affidavits of: ∙ Isaac Masty, a Cree beneficiary of the James Bay and Northern Quebec Agreement of 1975 and an Indian under the Indian Act,RSC, 1985, c I-5. He is Vice-Chairperson of the EMRWB since 2016. While he was President of the Cree Trappers Associationfrom 2009 to 2011, Isaac Masty was present at the meeting held in Inukjuak, Quebec, on September 20-22, 2011.

In his affidavit,he states that the EMRWB did not participate in negotiating the document entitled "“Consensus from the Southern Hudson Baypolar bear management meeting in Inukjuak September 2011”". Mr. Masty did not provide evidence attached to his affidavit. ∙ Alan Penn, currently employed as a science advisor to the Grand Council of the Crees (Eeyou Istchee) and the Cree NationGovernment. Mr. Penn has over 40 years of work experience on natural resources and environmental issues in northern Quebec.He participated in negotiating EMRLCA. He attended the meeting held in Ottawa on September 25-27, 2014.

Like Isaac Masty,Alan Penn also stated in his affidavit that Canada did not intend to refer to the Consensus document as a "“domesticinterjurisdictional agreement”" within the context of EMRLCA. He was cross-examined. ∙ Brian Craik, Director of Federal Relations for the Grand Council of the Cree (Eeyou Istchee)/ Cree Nation Government. He wasalso responsible for negotiating EMRLCA. Mr.

Craik provided information about Cree decision-making structure and thenegotiation process of EMRLCA. [58] On judicial review, it is trite law that the Court should only consider evidence that was before the original decision-maker: Henri vCanada (Attorney General), 2016 FCA 38 at para 39 [Henri].

Here, the parties produced affidavits that contained a significant amount ofevidence in support of their records. [59] In determining whether additional evidence may be introduced upon judicial review, three exceptions govern: […] The only exceptions to this rule have been made in instances where the evidence was introduced to support an argumentgoing to procedural fairness or jurisdiction (as in McConnell v.

Canada, 2004 FC 817 at para 68, upheld at 2005 FCA 389),or where the material is considered general background information that would assist the Court (see, for ex., Chopra v.Canada (Treasury Board) (1999), (FC), 168 F.T.R. 273 [Chopra] at para 9). (Ochapowace First Nation v Canada (Attorney General), 2007 FC 920 at para 9) [60] I acknowledge the argument of the AG of Nunavut that the record has been impacted by time and due to the changing focus of theproceedings as evidenced by the amended and re-amended applications for judicial review. [61] After carefully reviewing the affidavit evidence on file and the submissions of the parties, I note that much of the material includedin the parties’ supporting affidavits present general background information that would assist the Court.

In particular, Ms. ValentinaCean’s affidavit contains documents, such as a

summary report collected by the NMRWB during its ITK study after the public hearingsin Inukjuak entitled "“Nunavik Inuit Knowledge of Polar Bears:

Summary of Knowledge and Suggestions”". Ms. Cean’s affidavit alsoincludes guidelines from the NMRWB called "“Guidelines for the Nunavik Marine Region Public Hearing to consider establishment of aTotal Allowable Take for Southern Hudson Bay polar bear with the Nunavik Marine Region”". [62] Ms. Vallender’s affidavit also contains several presentations from experienced and knowledgeable hunters and research scientistson SHB polar bear management. Although they were not included in the record before the Boards, I find that such affidavit evidence isadmissible in the case at bar.

Although it is not relevant to the merits of the matter, it is helpful to the Court toward understanding theissues in this proceeding. [63] In light of the difficulty with the record before me, in my analysis and reasons I will be referring to some of the affidavit materialonly for the context or the backdrop upon which the Minister’s decision was made. A. Makivik’s Motion to Strike Portions of the Vallender Affidavit [64] As a general principle, reviewing courts are to proceed on the merits based on the available evidence that was before the originaldecision-maker (Henri at para 39).

"“Affidavit evidence going to the merits of the matter already decided by the decision-maker shouldinstead be struck out as they invade the role of the initial decision-maker as fact-finder and merits-provider”" (Shahzad v Canada(Citizenship and Immigration), 2017 FC 999 at para 21; see also Association of Universities and Colleges of Canada v CanadianCopyright Licensing Agency (Access Copyright), 2012 FCA 22). [65] In response to Makivik’s motion record concerning Ms. Vallender’s affidavit evidence, I grant Makivik’s motion and accordingly,

the Court will strike paragraphs 90, 91 and 92 of Ms. Vallender’s affidavit. These paragraphs refer to the 2016 aerial survey results, which were not available before the Board or the Minister at the time of the decision and these paragraphs contain more than simply background information. Exhibits RV-28 and RV-29 are accordingly also not relevant or admissible evidence for the purposes of this judicial review as there is no evidence to suggest that they were before the Minister.

Further, they contain more than background information. [ 66 ] Paragraphs 90, 91 and 92 and the associated exhibits are therefore struck and have not been considered. B. Makivik’s Motion to Determine the Propriety of Objections made by the AG of Canada during the course of a Written Cross-examination [ 67 ] This motion also relates to Ms. Vallender’s affidavit and documents produced in her affidavit (Exhibits, CE4, CE-5 and CE-6). As set out in Makivik’s motion, subsequent to the November 2017 cross-examination of Ms. Vallender, Makivik and the AG of Canada agreed as follows: a.

Respondent Canada would provide the documents requested on a courtesy basis, with, however, certain information redacted for claimed privileges; b. After reviewing them, the Applicant could decide which ones it believed were relevant and have them produced, via supplementary written cross-examination of Dr. Vallender; c. The documents would be produced with Dr. Vallender’s response to the supplementary written cross-examination, under reserve of the objections of Respondent Canada with respect to relevancy and privilege; d. Dr.

Vallender’s response and the attached documents would be filed as part of the Applicant’s Record; and e The Applicant could then file a motion under Rule 95 to have Respondent Canada’s objections and privilege claims determined by the Court, motion would be presented to the judge hearing the case on the merits. [ 68 ] The documents in question relate to internal communications within ECCC prior to the Minister’s decision.

The AG of Canada, in addition to procedural arguments about the propriety of Makivik’s request, objects to the production of the redacted portions of the correspondence based on relevance and privilege.

AG of Canada argues that the documents in question were drafted or created before the Deputy Minister’s rejection of the initial decision of the Boards. [ 69 ] Makivik disagrees, suggesting that the documents are relevant because: the Minister adopted all of the recommendations of the ECCC staff so any fettering of discretion was transferred to the Minister; much of the exhibits produced by the AG of Canada in its record were also not before the Minister when she made her decision so the AG of Canada cannot now allege that these documents are irrelevant; and that the deliberative privilege argument has no application to administrative decisions or, that if there is deliberative privilege in this case, it can be revoked.

Lastly, Makivik argues that the honour of the Crown and NILCA militate in favour of the disclosure of the information. [ 70 ] I am persuaded by the arguments of the Respondent AG of Canada that the documents in question are not relevant to the merits of the application before me. At this time, I need not determine whether they are privileged. As all parties have noted, the record has produced a voluminous amount of materials much of which was not before the Minister, whose decision is the subject of the judicial review.

As discussed above, I have decided to view much of this material as background or to aid in providing context. Similarly, I find that the documents Makivik’s motion seeks to produce are not relevant to this proceeding. There is nothing to suggest that they would clarify the Minister’s decision-making process under these circumstances. I would not benefit from the production of the redacted portions of the documents in my deliberations in light of the state of the material produced by the parties and the direction that the proceeding has taken. [ 71 ] Makivik’s motion is therefore dismissed.

The AG of Canada’s objections regarding the relevance of Exhibits CE-4, CE-5 and CE-6 are maintained and these exhibits will be struck from the Court record. IV. Issues [ 72 ] Makivik raised the following issues: (

a) At the time she rendered her decision, did the Minister have jurisdiction to vary the non-quota limitations established by the Boards in their final decision? (

b) In the alternative, if the answer to the above question is yes, is the Minister’s decision to establish a sex-selective harvest and vary other non-quota limitations decided by the Boards correct and/or reasonable? (

c) Was it correct or reasonable for the Minister to have considered the politics of international trade and/or issues related to CITES when making her decision? (

d) Was it correct or reasonable for the Minister to have considered the 2014 Voluntary Agreement when making her decision? (

e) Was it correct or reasonable for the Minister to place the entire burden of her conservation concerns on Nunavik Inuit? (

f) Did the Minister act reasonably or was she correct in law when she failed to provide the NMRWB with the opportunity to

respond to her concerns regarding the methodology and results of its Inuit traditional knowledge study prior to making her decision? (

g) Did the Minister act reasonably or was she correct in law when she failed to seek further information regarding the methodology and results of the NMRWB’s Inuit traditional knowledge study prior to making her decision? (

h) Did the Minister fail to give full regard to the integration of Nunavik Inuit knowledge of wildlife and wildlife habitat with knowledge gained through scientific research when making her decision? (

i) Did the Minister act reasonably or was she correct in law to rely on a " “cautious management approach” " as justification for limiting Nunavik Inuit harvesting when making her decision? (

j) Did the Minister prejudge the issue and/or fetter her discretion by adopting the position that the total harvest from the SHB population would have to be " “defensible according to the CITES criteria” " ? [ 73 ] In its written submissions, the NMRWB raised the following issues: (

a) Did the Minister fail to follow the procedure established under NILCA by failing to raise concerns about the methodology and results of the NMRWB’s Inuit traditional knowledge study at the appropriate time and by thus failing to give the Board the opportunity to respond? If so, does this render the Minister’s decision incorrect and/or illegal? (

b) Did the Minister fail to demonstrate the proper level of deference to the principles and objectives of NILCA? If so, does this render the Minister’s decision incorrect and/or illegal? (

c) Did the Minister fail to demonstrate the proper level of deference to the NMRWB’s Final Decision? If so, does this render the Minister’s decision incorrect and/or illegal? [ 74 ] The Intervener NTI, on the other hand, obtained leave of this Court to intervene on two of the issues raised by Makivik, namely that: 1) the Minister did not err in considering the 2014 Voluntary Agreement on polar bear quotas, and 2) the Minister did not " “wrongfully and unfairly” " favour the interest of Nunavut Inuit over Nunavik Inuit.

NTI takes no position on the other issues raised by Makivik in the present application for judicial review. [ 75 ] I will address the issues in the manner identified by Makivik because the issues identified by the NMRWB and NTI are encompassed within the issues raised by Makivik. The parties, for the most part, have also addressed their respective arguments in the manner identified by Makivik. A. Mootness Argument [ 76 ] As outlined in paragraphs 20-23, the Intervener AG of Nunavut asked this Court to decline to consider this application since the issues are, they allege, moot.

Alternatively, if I did not consider the application moot, the AG of Nunavut urged me to exercise this Court’s discretion to decline granting declaratory relief. [ 77 ] None of the parties have considered the mootness of the case. Instead, the parties presented written arguments arguing their support or disagreement with the Minister’s decision. The Intervener AG of Nunavut submits that Makivik is now only asking this Court to address issues with respect to the implementation of NILCA.

As determined in Borowski , " “[t]his is not a request to decide a moot question but to decide a different, abstract question” " . [ 78 ] The Intervener AG of Nunavut therefore submits that the present application for judicial review is no longer about the harvesting of polar bears from the SHB subpopulation because the remedy sought by Makivik applies to " “any species harvested by Nunavik Inuit” " . [ 79 ] I am not persuaded by the argument of the Intervener AG of Nunavut. I take the view that there remains a live controversy in how the decision-making process under NILCA is to unfold.

Having the Court address the arguments may offer some guidance to the parties for how the process unfolded in this instance and it may assist in how future decisions will be made. The Court, considering the criteria as set in Pro-West Transport Ltd. V Canada (Attorney General) , 2007 FCA 206 , will exercise its discretion to hear this matter. V. Standard of review [ 80 ] Before dealing with the issues as identified by Makivik, I must address the appropriate standard of review. The parties do not agree on the appropriate standard of review and their submissions are summarized below. A.

The Applicant [ 81 ] Makivik acknowledges that the Supreme Court of Canada has not directly considered the question of what standard of review should apply to decisions made under or pursuant to modern treaties. [ 82 ] Makivik relies on Nacho Nyak Dun , at paragraph 35 , for the proposition that the only deference is to the terms of the Treaty itself, thereby suggesting that the standard of review is correctness. They further argue that none of the hallmarks of reasonableness are present in the decision-making regime in NILCA.

For instance, they submit that there is no privative clause which benefits the Minister, NILCA is not the Minister’s home statute, that the Minister has no particular expertise— or at least no more than Nunavik Inuit, and that the majority of the questions are not fact-based questions about conservation but legal questions about the proper

interpretation of NILCA.

[83] Makivik further argues that the Supreme Court’s words in Dunsmuir v New Brunswick, 2008 SCC 9 at para 30 [Dunsmuir] requirebalancing the rule of law with legislative intent. In this case, they contend that there is no legislative intent, so only the terms of theTreaty are important.

This further suggests that the correctness standard applies. [84] Lastly, Makivik argues that Kadlak v Nunavut (Minister of Sustainable Development), 2001 NUCJ 1 , [2001] 6 WWR 276[Kadlak] establishes that the standard of review is correctness and therefore this Court can rely on the principles of that case for theproposition that the standard of review is correctness. B. The Respondent NMRWB [85] The Respondent NMRWB did not make submissions on the standard of review. C.

The Cree Respondent [86] The Cree Respondent supports Makivik’s position that the standard of review is correctness in that the contents of the Treaty itselfsupport deference to its terms. It too relies on Nacho Nyak Dun for the argument that the Minister owed the NMRWB deference due totheir specialized knowledge or expertise and, therefore, the Minister can only propose partial or minor variations without altering thefundamental nature of the decisions. D.

The Intervener AG of Nunavut [87] The Intervener AG of Nunavut argues that there is no jurisprudence that establishes the standard of review under the circumstancesand therefore the Court must perform the analysis in Pushpanathan v Canada (Minister of Citizenship and Immigration), (SCC), [1998] 1 SCR 982 at para 29 [Pushpanathan]. It also argues that determining the standard of review is unnecessary ifdeclaratory relief is declined. E.

The Respondent AG of Canada [88] The Respondent AG of Canada argues that the presumptive standard of review is reasonableness, citing Dunsmuir at para 30 andAlberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 at para 39. The Respondent also relieson Nunatsiavut v Canada (Attorney General), 2015 FC 492 [Nunatsiavut] for support that the proper standard of review isreasonableness. F. The Intervener NTI [89] The Intervenor NTI argues that the standard of review varies according to the characterization of the issue. They argue that: interms of the

interpretation of the Treaty, the standard of review is correctness since the Treaty is not the home statute of the Minister; inreviewing whether the 2014 Voluntary Agreement is a breach of the Treaty, the standard of review is correctness; in exercising theMinister’s discretion pursuant to the Treaty, the standard of review is reasonableness; in determining the fairness of the TAT, it is not aTreaty

Interpretation issue, therefore the standard of review is reasonableness. G. Analysis [90] I acknowledge that there is no well-established standard of review for the current matter which, as Makivik submits, is not a duty toconsult case but rather an implementation of a modern treaty. I also note that Nacho Nyuk Dun, Beckman v Little Salmon/Carmacks FirstNation, 2010 SCC 53 [Little Salmon], and Nunatsiavut, which were argued by the parties, all dealt with a duty to consult issue arisingfrom a modern treaty.

However, as stated, these cases are of limited application since Makivik has made clear that this case is not aboutthe duty to consult. I must therefore embark on a standard of review analysis. [91] The Supreme Court’s analysis in Pushpanathan or Dunsmuir details that when determining the standard of review there are fourfactors to be taken into account. In Dunsmuir, the Supreme Court stated the following at para 64: The analysis must be contextual.

As mentioned above, it is dependent on the application of a number of relevant factors,including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by

interpretation ofenabling legislation; (3) the nature of the question at issue; and (4) the expertise of the tribunal. In many cases it will benecessary to consider all of the factors, as some of them may be determinative in the application of the reasonablenessstandard in a specific case. [92] In Canada (Citizenship and Immigration) v Khosa 2009 SCC 12 , [2009] 1 SCR 339 [Khosa], Justice Binnie, for themajority, also stated at para 376: Those factors have to be considered as a whole, bearing in mind that not all factors will necessary be relevant for everysingle case. A contextualized approach is required.

Factors should not be taken as items on a checklist of criteria that need tobe individually analyzed, categorized and balanced in each case to determine whether deference is appropriate or not. Whatis required is an overall evaluation. Nevertheless, having regard to the argument made before us, I propose to comment onthe different factors identified in Dunsmuir, all of which in my view point to a reasonableness standard. [93] I take the above passages to mean that no one factor is determinative. As in Khosa, it is be necessary in this case to comment oneach factor.

[ 94 ] With respect to the absence or presence of a privative clause, NILCA does not contain a privative clause. In fact, NILCA itself provides that any decisions of the Minister may be challenged by way of judicial review. Therefore, I must review the other factors. [ 95 ] The second factor is the purpose of the tribunal as determined by the legislation (or modern treaty in this case).

Dunsmuir , at para 54 , provides the following statement as to the deference owed: Deference will usually result where a tribunal is interpreting its own stature o r statutes closely connected to its function , with which it will have particular familiarity: […] Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule to a specific statutory context… [Emphasis added.] [ 96 ] In this case, there is no statute but the terms of the modern treaty. The modern treaty, or at least many of the provisions, such as

Article 5, is (or, are) in some respects closely connected with the Minister’s functions, which are primarily related to conservation. Paragraph 5.1.2(

j) provides that, " “Government has ultimate authority for wildlife management and agrees to exercise this responsibility in the NMR in accordance with the provision of this Article” " . [ 97 ] The submissions of the parties on the applicable treaty

interpretation principles are also useful. The submissions of the parties, while referring to cases involving the duty to consult, are relevant for the principle that Courts should exercise restraint. As stated by Justice Binnie in Little Salmon at para 54 : The difference between the LSCFN Treaty and Treaty No. 8 is not simply that the former is a “modern comprehensive treaty” and the latter is more than a century old. Today’s modern treaty will become tomorrow’s historic treaty. The distinction lies in the relative precision and sophistication of the modern document.

Where adequately resourced and professionally represented parties have sought to order their own affairs, and have given shape to the duty to consult by incorporating consultation procedures into a treaty, their efforts should be encouraged and, subject to such constitutional limitations as the honour of the Crown, the Court should strive to respect their handiwork: Quebec (Attorney General) v.

Moses , 2010 SCC 17 . [2010] 1 S.C.R. 557. [ 98 ] In my view, the principle of judicial restraint points to deference toward the terms of the Treaty unless there is some reason to depart from those terms as noted by Justice Binnie in Little Salmon . [ 99 ] The Court in Pushpanathan at para 36 also states: …While judicial procedure is premised on a bipolar opposition of the parties, interests, and factual discovery, some problems require the consideration of numerous interests simultaneously, and the promulgation of solutions which concurrently balance benefits and costs for many different parties.

Where an administrative structure more closely resembles this model, courts will exercise restraint. The polycentricity principle is a helpful way of understanding the variety of criteria developed under the rubric of the “statutory purpose”. [ 100 ] I am of the view that the regime created by NILCA is also such a polycentric system where various interests are to be considered for the overall purpose of conservation, with special consideration being given to the interests of Nunavik Inuit.

The collaborative process in NILCA, as evidenced by the processes that the Boards and Minister employed, reflects both a consideration of several interests and different types of information. With that said, this application considers only the Minister’s decision. The Minister’s decision- making process in light of the overall process points to a deferential standard. [ 101 ] The third factor is the " “nature of the problem” " and whether it is a question of law or fact.

In Pushpanathan at para 37 , the Court stated: There is no clear line to be drawn between questions of law and questions of fact, and in any event, many determinations involve questions of mixed law and fact.

An appropriate litmus test was set out in Southam, supra , at para 37 by Iacobucci J., who stated: Of course, it is not easy to say precisely where the line should be drawn; though in most cases it should be sufficiently clear whether the dispute is over a general proposition that might classify as a principle of law or over a very particular set of circumstances that is not apt to be of much interest to judges and lawyers in the future. [ 102 ] In this regard, the process set out in NILCA is a collaborative process that strives to settle key facts in order to determine an appropriate wildlife management approach.

On its face, it is my view that it is a fact-finding mission that both the Boards and the Minister employ. The record confirms this. The NILCA decision-making process points to deference. [ 103 ] Regarding the last factor, expertise, I note that the intent of NILCA and the collaborative decision-making process is to blend ITK with the scientific knowledge or expertise of the Minister when it comes to wildlife management.

In addition, the parties have negotiated a comprehensive treaty that also provides that, in paragraph 5.1.2(j), the " “Minister has the ultimate responsibility for wildlife management” " and the Minister agrees to exercise this responsibility in accordance with

Article 5. [ 104 ] The Court does not have the benefit of any evidence that may assist in determining the parties’ intent respecting paragraph 5.1.2(j). I am left to review the terms of NILCA itself. In my view, the terms of NILCA, as a whole, favour an

interpretation that the parties accepted the Minister, ECCC officials, and staff possess some degree of expertise. The inclusion of paragraph 5.1.2(

j) itself appears to reflect this. [ 105 ] An analogous consideration of the terms of a modern treaty, albeit in a duty to consult case, was undertaken in Nunatsiavut at para 116 :

For example, a modern treaty by its terms may specify all, or certain aspects of, the consultation required, including participation in an identified environmental assessment process. Should the Crown fail to comply with those consultation requirements by not participating then it would have breached its duty to consult and, necessarily would have failed to identify and implement an adequate process of consultation in that regard. To proceed on that basis would be an error of law.

However, if the Crown correctly identified the prevailing legal parameters, then the adequacy of the consultation process would be reviewed on the reasonableness standard. [ 106 ] Therefore, the Minister’s adherence to the decision-making process of NILCA will be reviewed on the correctness standard. This can be framed as whether the Minister had exercised her jurisdiction properly, which Makivik submits she did not.

Jurisdictional challenges are determined on the correctness standard ( Dunsmuir at para 59 ; Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 at paras 18 and 24 ). [ 107 ] The Minister’s decision as a whole will be determined on the reasonableness standard.

Under this standard, the Court is concerned mostly with the " “existence of justification, transparency and intelligibility” " and whether the decision " “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” " : Dunsmuir at para 47 . [ 108 ] The reasonableness standard is also supported by the following passage of Nacho Nyak Dun at para 60 : Close judicial management of the implementation of modern treaties may undermine the meaningful dialogue and long-term relationship that these treaties were designed to foster.

Judicial restraint leaves space for the parties to work out their understanding of a process- quite literally, to reconcile- without the court’s management of that process beyond what is necessary to resolve the specific dispute. [ 109 ] The parties have acknowledged that the NILCA decision-making process has never before been undertaken. NILCA provides for collaboration between the Boards and their technical advisors with the Minister and the Minister’s technical advisors. That process is clear and undisputed.

What is in dispute is the end result of that process which involved an assessment of this information and weighing or balancing of information leading to the Minister’s decision. VI. Submissions of the Parties and Analysis A. Did the Minister have jurisdiction to vary the non-quota limitations established by the Boards in their final decision? B. In the alternative, if the answer to the above question is yes, is the Minister’s decision to establish a sex-selective harvest and vary other non-quota limitations decided by the Boards correct and/or reasonable?

(1) Applicant’s position [ 110 ] As a starting point, Makivik argues that, by virtue of

section 5.3.1 of NILCA, there can be no restrictions of any kind imposed on Nunavik hunting rights unless the Treaty’s terms are followed. [ 111 ] Makivik submits that the Minister did not have jurisdiction to vary the non-quota limitations established by the Boards in their final decision. Makivik submits that the Minister ought to have rendered a decision within a comprehensive process established by NILCA, specifically sections 5.5.7 to 5.5.12.

Makivik argues that the Minister failed to provide the Boards an opportunity to consider and to respond to their concerns regarding the non-quota limitations mentioned in the Boards’ initial decision. It is therefore submitted that the Minister had no jurisdiction to vary the decision in accordance with

section 5.5.12, as discussions under sections 5.5.8 and 5.5.11 did not occur ( The First Nation of Nacho Nyak Dun v Yukon , 2015 YKCA 18 at para 151 ). Makivik contends that such omissions by the Minister should not be permitted as it would threaten the " “central role” " of the Boards in wildlife management in the NMR, as described in

section 5.2.3 of NILCA ( Nacho Nyak Dun at para 48 ). [ 112 ] Makivik does, however, acknowledge that ECCC officials raised their concerns regarding some of the non-quota limitations established by the Boards. Makivik explains that the Minister cannot raise concerns after the Boards’ final decision, without any consultation, as it is contrary to the modern treaty negotiated between the parties.

According to Makivik, this procedural error constitutes " “a breach of the honour of the Crown” " , even if it would not have changed the outcome ( Corporation Makivik c Québec (Procureure générale ) , 2014 QCCA 1455 at para 78 ). On July 22, 2016, the Boards responded to ECCC’s letter and wrote that no exchange had occurred in accordance with the

preamble and provisions of NILCA. [ 113 ] In the event that I conclude that the Minister did have jurisdiction to vary the Boards’ decision, Makivik argues that the Minister’s decision is incorrect and/or unreasonable. Although Makivik opposes to the entirety of the decision, it only chose to make submissions regarding the Minister’s decision to impose a sex-selective harvest for brevity. Makivik submits that the Minister’s response to respect the 4.5 percent removal rate requirement for the harvesting of polar bear " “goes against Inuit traditions and values” " . As recognized by paragraph 5.1.2(

c) of NILCA, Makivik submits that Nunavik Inuit have developed particular knowledge and understanding of the region and its resources.

(2) Respondents’ position s [ 114 ] The Respondent NMRWB and the Cree Respondent both argue that the Minister showed no deference to the Boards’ decision

since she ignored the Boards’ non-quota limitations and established her own non-quota limitations. It is submitted that the Minister wrongly exercised her authority to vary the Boards’ final decision since she can only accept, vary or reject non-quota limitation previously fixed by the NMRWB. The Respondents contend that the Minister disregarded the NMRWB’s mandate from NILCA, a modern treaty that is " “intended to renew the relationship between Indigenous peoples and the Crown to one of equal partnership” " ( Nacho Nyak Dun at para 33 ). The Cree Respondent is of the view that the Minister failed to " “(1) tak[e] a broad purposive approach to the

interpretation of the promise; and (2) ac[t] diligently to fulfill it” " ( Manitoba Metis Federation Inc. v Canada (Attorney General) , 2013 SCC 14 at para 75 ). [ 115 ] The Respondent AG of Canada, on the other hand, submits that the Minister did not err in rejecting the Boards’ initial decision as a whole. It is submitted that NILCA allows the Minister to either accept or reject the Boards’ decision.

The Respondent AG of Canada argues that the Minister considered the Boards’ non-quota limitations and rejected, or varied, only four of them since the Boards did not have the authority under NILCA to establish such non-quota limitations. It is further argued that the Minister reasonably imposed a sex- selective harvest and properly explained in the decision why it was necessary to respect the 4.5 percent removal rate requirement for the harvesting of polar bear, based on the scientific data before the Minister.

According to the Respondent AG of Canada, Nunavik Inuit would not be prevented from exercising their harvesting rights by limiting the hunting of polar bear to a sex-selective harvest. In any case, the Respondent is of the view that the Minister did not impose a sex-selective harvest, but rather recommended that the Boards review this issue in the upcoming harvesting seasons.

(3) Analysis (

a) Jurisdiction [ 116 ] I am persuaded by the argument of the AG of Canada and find that the Minister did have jurisdiction to vary the non-quota limitations established by the Boards in their final decision. [ 117 ] Makivik’s reliance on Nacho Nyuk Dun and the fact that that case involved a similar treaty decision-making process is not persuasive. The Supreme Court of Canada in that case found that, " “allowing the Yukon government an unconstrained authority to modify the final recommended plan would render this process meaningless, as Yukon would have free reign to re-write the plan at the end” " (at para 48).

I do not view the Minister’s approach as an unconstrained authority. NILCA set out what the Minister could or could not do in sections 5.5.7 to 5.5.11. These sections are reproduced below: 5.5.7 When the NMRWB makes a decision, it shall forward that decision to the Minister. The NMRWB shall not make that decision public. 5.5.8 After receiving a decision of the NMRWB pursuant to

section 5.5.7, the Minister shall within 60 days or within such further period as may be agreed upon by the Minister and the NMRWB: (

a) accept the decision and notify the NMRWB in writing; or (

b) reject the decision and give the NMRWB reasons in writing for so doing. 5.5.9 The Minister shall be deemed to have accepted the decision of the NMRWB when: (

a) the Minister has so notified the NMRWB in writing; or (

b) the Minister has not rejected the decision within the time period and in the manner required pursuant to

section 5.5.8. 5.5.10 Where the Minister is deemed to have accepted a decision of the NMRWB as provided in

section 5.5.9, the Minister shall proceed forthwith to do all things necessary to implement that decision. 5.5.11 Where the Minister rejects a decision of the NMRWB pursuant to

section 5.5.8, the NMRWB shall reconsider the decision in light of the written reasons provided by the Minister and make a final decision, which it shall forward to the Minister. The NMRWB may make the final decision public. [ 118 ] The Minister followed that process.

The process does not specify any additional steps for the Minister to take in considering the decisions of the NMRWB and making her own decisions. [ 119 ] Makivik argued that when the Deputy Minister rejected the initial decision, the ECCC was silent about the non-quota limitations established by the Boards, yet the Minister’s final decision varied this aspect of the Boards’ final decision.

It is this omission between the response from the Deputy Minister and the Minister’s decision that Makivik argues leads to a lack of jurisdiction. [ 120 ] The Respondent AG of Canada argued that the Minister had the authority to modify the non-quota limitations and that there was no requirement to provide detailed reasons for the rejection of the initial decision of the Boards.

The Respondent further argues that, in any event the Minister, through the ECCC officials, did communicate concerns regarding the non-quota limitations. [ 121 ] In oral argument, the AG of Nunavut pointed out that the public meeting notice referred to and attached in Mr. Gilbert’s affidavit referred only to TAT. The notice provides, in part, " “Further hearings will be held to consider harvests from Foxe Basin and Davis Strait subpopulations, and all non-quota regulations applicable to polar bear harvesting” " . However, the Boards’ decision is not challenged.

The notice and the ensuing decision of the Board reflect the " “newness” " of the process that the parties were undertaking. Accordingly, I will not rely on this factor. [ 122 ] The process undertaken by the Boards and the Minister could certainly have been improved. As stated above, the process in sections 5.5.7 to 5.5.11 do not set out the specific requirements of the Minister in arriving at a decision when considering a decision of

the NMRWB. Beyond the requirement to provide reasons, they do not provide much guidance. [ 123 ] As a general observation, I note that the composition of the NMRWB includes Makivik officials as well as Government officials, and it is surprising that only now the parties are making submissions about the deficiencies in the communications leading up to and during the decision-making process; yet there is no evidence that this was raised amongst the NMRWB members or among the technical representatives that the parties are permitted to enlist.

If there were any discussions at the NMRWB or among the technical representatives, I do not have any evidence of this. Rather, in the affidavit of Ms. Breton-Honeyman, at paragraphs 71 to 74, the Minister did not always send a technical representative to the meetings and if there was a technical person attending they either did not voice any concerns with processes and other matters, or they were unfamiliar with NILCA.

This was not refuted by the AG of Canada. [ 124 ] Nevertheless, notwithstanding the fact that this inaugural process was not ideal, I find that the Minister followed the decision- making process set forth in NILCA. In other words, NILCA contains no specific restrictions on the Minister’s authority or jurisdiction to vary any non-quota limitations. (

b) Was the Decision reasonable? [ 125 ] Turning now to the question of whether the Minister made a reasonable decision in relation to the non-quota limitations, once again the terms of NILCA must be reviewed. The Boards’ ability to set non-quota limitations in accordance with

section 5.2.19 is not unconstrained. The Boards’ decision is subject to the terms of

Article 5, which require both noting the Minister’s ultimate authority on wildlife matters and aligning with the principles of conservation enumerated in sections 5.1.2 and 5.1.3. [ 126 ] In addition to the terms of NILCA, it is important to look at the interactions of the Treaty partners. This is not a typical legal document— it is a constitutionally protected Treaty.

Accordingly, the Minister’s actions and steps taken must be viewed in this light and with the honour of the Crown. [ 127 ] Taking these principles into account, I am persuaded by Makivik’s argument that the omission between the response from the Deputy Minister and the Minister or between the ECCC staff and the NMRWB or its staff renders the Minister’s decision unreasonable with respect to the non-quota limitations. [ 128 ] As stated above, I have not been presented with any evidence that any discussions occurred at the NMRWB level or at the technical representative level.

Had such discussions occurred and had such evidence been presented in this proceeding, I might have found otherwise. [ 129 ] I therefore find that the Minister had jurisdiction to vary non-quota limitations but that this jurisdiction was not exercised reasonably. C. Was it correct or reasonable for the Minister to have considered the politics of international trade and/or issues related to CITES when making her decision?

(1) Applicant’s position [ 130 ] Makivik argues that the Minister did not have the authority to refer to CITES in rendering the decision. In its written submissions, Makivik argued before this Court that the Minister’s decision was unreasonable for considering CITES because: (

a) CITES does not place any legal obligations on Canada with respect to the level of the polar bear harvest, […]; (

b) CITES is not an " “international agreement” " that must be taken into account under s. 5.5.4.1; and (

c) Inuit’s economic interest in avoiding a trade ban is far less important than their cultural interest in maintaining an appropriate level of hunt. [ 131 ] In the Memorandum to the Minister dated September 21, 2016, ECCC officials raised sustainable harvest and conservation concerns regarding the importance of polar bear parts for Nunavik Inuit’s economic interests. Makivik, however, submits that, " “[c]ommercial gain is not the aim of [Inuit] harvesting of polar bears” " . The Affidavit of Mr.

Alaku provides, at paragraphs 25 and 26: I must emphasize, however, that the sale of the hide is not the primary motivating factor for Nunavik Inuit harvesting of polar bear. If the international trade of polar bear hides was banned tomorrow, and if the market for these hides ceased to exist, Inuit would continue harvesting polar bears, just as we did long before this market ever existed. This is why we cannot accept restrictions that are driven by considerations of international trade.

Commercial gain is not the aim of our harvesting of polar bears; while the sale of hide can represent an important windfall for a particular hunter, polar bear hunting is, at its heart, about our connection with our environment. [ 132 ] Makivik submits that the Minister erred in noting that the banning of polar bear trade under CITES would impact Inuit harvesting rates. Makivik argues that, " “the two concepts are legally independent from one another” " .

(2) Respondents’ position s [ 133 ] The Respondent AG of Canada submits that the Minister’s decision is reasonable and makes no mention of the politics of international trade or CITES. It is submitted that the Minister’s decision to vary the TAT was based only on conservation concerns and therefore Makivik’s argument is academic. In their recommendation letter to the Minister, ECCC officials only introduced issues related to CITES and international trade as an additional source of information about the principles of conservation, as required by NILCA.

[ 134 ] The Respondent AG of Canada further argues that the Minister did not err in considering issues related to CITES as the Convention does not contradict the principles established in NILCA. Considering that polar bears are enumerated in Appendix II of CITES,

Article 2(

a) of CITES states that, " “all species which although not necessarily now threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival” " . Pursuant to

section 5.1.2 of NILCA, the Respondent submits that, " “the wildlife management system and the exercise of Nunavik Inuit harvesting rights are governed by and subject to the principles of conservation” " . The Respondent AG of Canada therefore argues that both NILCA and CITES intend to respect the principles of conservation in order to protect the polar bears. [ 135 ] The Respondent AG of Canada reminds Makivik, citing NILCA paragraph 5.1.3, that the purpose of NILCA is to promote the " “ long-term economic, social and cultural ” " interests of Nunavik Inuit [Emphasis added by the Respondent AG of Canada].

CITES therefore is an international agreement that was reasonably taken into account by the Minister in making the decision.

(3) Analysis [ 136 ] I acknowledge the argument of Makivik that the profound cultural importance of the polar bear hunt is the most important factor for the Inuit and that this factor should have weighed more heavily in the balance for the Minister than any threat of a trade ban. Makivik argues that the Minister’s reliance on a possible ban due to CITES justified the Minister in placing undue weight on the Inuit’s economic interest in avoiding a trade ban.

In making this argument, Makivik correctly notes the balancing that the Minister (and also the Boards in their initial and final decisions) must undertake. [ 137 ] I also note that the affidavit of Gregor Gilbert makes many references to CITES and the discussions among the various parties over the course of several years related to CITES. Mr. Gilbert also echoes Mr. Alaku’s evidence related to the degree of economic importance. For example, Mr. Gilbert states: [46] Inuit organizations including Makivik were concerned by the possibility that polar bear would be up-listed to Appendix I.

While trade and economic benefits are not the primary motivator for most polar bear harvesting carried out by the Inuit, it remains the case that, in an area where economic opportunities and well-paying jobs can be hard to come by, the amounts earned from the sale of a polar bear hide can be a very important source of income for communities.

As the market for polar bear hides is mostly located outside of Canada, Inuit knew that if polar bear were up-listed this important source of income would disappear. […] [65] In July 2012, a letter that had been approved by the relevant parties (Environment Canada, Makivik, Nunavut Tunngavik Incorporated, the NMRWB, Quebec and Ontario) was circulated to hunters in the Southern Hudson Bay management unit advising them that the 2011 voluntary agreement would likely be renewed.

Among other things, this letter noted as follows: You will recall from the meeting in Inukjuak that Environment Canada officials spoke about the international scrutiny that polar bear management in Canada faces. In fact, several animal rights NGOs are using the SHB situation as a rationale to uplist polar bears to Appendix 1 of CITES at the upcoming Conference of the Parties in March 2013. If this proposal is successful it would effectively end trade in polar bear, and this would have a detrimental impact on hunters across the Canadian Artic.

Abiding by the voluntary harvest limit is one way that we can collectively show the world that Canadians of the North are invested in a sustainable and responsible harvest. […] [67] Indeed, as foreseen in this letter, a proposal to up-list polar bear from Appendix II to Appendix I was made by the United States ahead of the 2013 CITES CoP which took place in Bangkok, Thailand, from March 3 to 14, 2013. […] [82] I attended the meetings in Ottawa in September 2014 that led to the 2014 voluntary agreement as a member of Makivik’s delegation.

It was clearly understood by all parties to those meetings that the purpose of the voluntary agreement was to counter the interest groups and governments that were lobbying for the up-listing of polar bears at CITES. [ 138 ] Rachel Vallender stated at paragraph 21 of her affidavit: While the possible uplisting of polar bear under CITES was one of the reasons behind meetings to discuss, and subsequently develop, the 2011 and 2014 voluntary agreements, it was always secondary to ensuring a sustainable harvest of a species at risk.

Indeed, ensuring the continuation of sound management practices was always the primary driver in any process involving the SHB polar bear subpopulation, including the two voluntary agreements and the Minister’s decision of October 19, 2016. [ 139 ] The above excerpts illustrate that Makivik and other parties were aware that CITES was a factor that was a backdrop to the disc

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